Lawful Discrimination and Off-Duty Conduct

Is discrimination ever legal? Most definitely. We all discriminate all day, every day. For example, nearly every morning, I discriminate against decaf coffee in favor the full-strength brew. The two pods are similarly situated right there in the rack. They brew in the same amount of time and cost the same. But I just can’t bear the thought of the decaf.

Is my coffee choice discriminatory? You bet. Is it unlawful? Good heaven, let’s hope not.

The same is true for the workplace. Employers can make employment decisions (i.e., discriminate), based on all sorts of things. Like who is the faster typist. Or who has the least number of dress-code violations. Choosing not to promote the employee who spends most mornings checking his Facebook account is discriminatory and it’s totally lawful.

Off-duty conduct is similar is many ways. In most states, including Delaware, private employers can make adverse employment decisions, including the decision to not hire, based on an employee’s or applicant’s off-duty conduct. The rules are different for public employers.

An example of employment discrimination based on off-duty conduct that seems raise a lot of eyebrows is discrimination based on smoking. Approximately 30 states have a “smokers’-rights” statute, which protects individuals who use tobacco from workplace discrimination. But Delaware is not one of those states. Thus, in Delaware, employers can decide not to hire (or employ) any individual who smokes or uses tobacco.

Pennsylvania is another state without a smokers’-rights statute. Which is why the University of Pennsylvania Medical System’s announcement that it will no longer hire smokers did not come as a big surprise. The Hospital of the University of Pennsylvania announced that it will permit current employees to continue to use tobacco–although those employees already pay a “smoker’s surcharge”–an extra charge added to the employee’s health-insurance payments.

New employees, however, will have to be tobacco free for 6 months in order to qualify for a position. And new employees, including doctors, who are found to have lied about their tobacco use may be terminated.

But not all new employees. Applicants for the Hospital’s facilities in New Jersey get a pass because that state has a smokers’-rights statute.

Much to the Hospital’s credit, it has published a great deal of information about the policy on its website.

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